{"database": "openregs", "table": "crs_reports", "rows": [["LSB11492", "The Fourth Amendment and the Speech or Debate Clause", "2026-10-20T04:00:00Z", "2026-10-22T10:08:06Z", "Active", "Posts", "Cassandra J. Barnum, Todd Garvey", "Fourth Amendment, The Supreme Court of the United States, U.S. Congress", "Various searches by federal agents of sitting Members of Congress can raise questions about the intersection of Fourth Amendment principles and the privilege held by Members under the Speech or Debate Clause of the Constitution. In one of these examples, reporting indicates that agents from Homeland Security Investigations seized documents and the Member\u2019s cellphone and laptop as part of an immigration-related investigation. It has also been reported that the search in the previous example was executed pursuant to a warrant and that the issuing judge imposed special procedural requirements on law enforcement in light of the Member\u2019s constitutional protections under the Speech or Debate Clause. The Member has reportedly alleged that some of those protocols were not followed, including a requirement that the Member and the House General Counsel be notified prior to execution of the warrant. Similar questions regarding the Fourth Amendment and the Speech or Debate Clause were raised in September 2026 in an interim staff report detailing the Department of Justice\u2019s (DOJ\u2019s) access to Member phone records during Special Counsel Jack Smtih\u2019s investigation of the events of January 6, 2021. \nThis Legal Sidebar discusses the intersection of the Fourth Amendment\u2019s prohibition on unreasonable searches and seizures, the search warrant requirement under that Amendment, and the sometimes-countervailing protections afforded by the Speech or Debate Clause.\nFourth Amendment Background\nThe Fourth Amendment prohibits unreasonable searches and seizures. As a result, law enforcement generally must obtain a search warrant from a \u201cneutral and detached magistrate\u201d before entering a private space to look for evidence. The Amendment states that \u201cno Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.\u201d The Supreme Court has characterized the probable-cause standard as \u201cthe kind of fair probability\u2019 on which reasonable and prudent\u2019\u201d people act. \nTo obtain a search warrant, law enforcement must establish probable cause that the materials sought are contraband or evidence that will \u201caid in a particular apprehension or conviction,\u201d or otherwise \u201cseizable by virtue of being connected with criminal activity.\u201d Law enforcement must also demonstrate \u201ca fair probability\u201d that these materials \u201cwill be found in a particular place.\u201d (This requirement may include a place occupied by a person not \u201cimplicated in the crime.\u201d) The Supreme Court has held that the privacy interest protected by the Fourth Amendment is strongest in people\u2019s homes.\nWhere a proposed search may implicate certain constitutional, statutory, or common-law privileges, such as the attorney-client privilege, courts sometimes impose search protocols that law enforcement must follow to preempt potential law enforcement access to privileged material. These processes can involve preliminary review by a \u201cfilter team\u201d\u2014meaning a group of law enforcement agents and prosecutors who are separate from the prosecution team and agree not to disclose any privileged information to the prosecution team. In other situations, where materials might be especially sensitive or otherwise subject to heightened concern, a judge or a special master can review the government\u2019s privilege determinations or conduct a filter review in the first instance.\nDOJ policy requires certain procedural steps to be taken before law enforcement may execute a search warrant in which a Member of Congress is involved. These steps include consultation with the Department\u2019s Public Integrity Section and the filing of an \u201cUrgent Report\u201d to Department leadership. \nSpeech or Debate Background\nThe Speech or Debate Clause ensures that, \u201cfor any Speech or Debate in either House,\u201d Members of Congress \u201cshall not be questioned in any other Place.\u201d The Clause is a key pillar in the separation of powers and serves chiefly to protect the independence, integrity, and effectiveness of the legislative branch by barring executive or judicial intrusions into the protected legislative sphere. Despite its text, courts have found the protections afforded by the Clause extend well beyond \u201cspeeches\u201d or \u201cdebates,\u201d instead providing Members with a series of privileges and immunities in both civil and criminal contexts that are meant to shield Members from a \u201chostile judiciary\u201d or \u201cintimidation by the executive.\u201d The Clause does not, however, turn Members into \u201csuper-citizens\u201d by providing them with a blanket exemption from legal liability for all illegal acts. Rather, the Clause shelters only a certain class of actions, known as \u201clegislative acts,\u201d which the Court has defined as conduct that is an \u201cintegral part of the deliberative and communicative processes\u201d through which Congress implements \u201cmatters which the Constitution places within the jurisdiction of either House.\u201d \nThe Clause\u2019s protections are implemented in a variety of ways. First and foremost, the Clause provides Members with absolute immunity from civil or criminal liability for all \u201clegislative acts\u201d taken in the course of their official responsibilities. Second, even where absolute immunity is not applicable, the Clause provides Members with complementary evidentiary and testimonial privileges. The evidentiary component prohibits evidence of legislative acts from being introduced in court for use against a Member, while the testimonial component of the Clause generally may be invoked when a Member is questioned about his legislative acts, either in a trial, before a grand jury, or in a deposition. As a result of the breadth of these protections, criminal prosecution of a Member can be complicated, but this impact on executive enforcement of the law was fully understood at the time the Clause was adopted and was considered a necessary consequence of protecting legislators from undue influence or intimidation.\nMost relevant for this Sidebar, courts have divided over whether to extend the Clause further to prohibit not only the use of legislative act material at trial, but also the mere disclosure of that material to the executive branch\u2014for example, during an administrative or criminal investigation. The U.S. Court of Appeals for the District of Columbia (D.C. Circuit), the federal circuit court with jurisdiction over the District of Columbia, has held that the Clause includes a \u201cnon-disclosure privilege,\u201d which can prohibit the disclosure of protected legislative act documents pursuant to a subpoena or during a search executed as part of a criminal investigation. The U.S. Court of Appeals for the Ninth Circuit and U.S. Court of Appeals for the Third Circuit have rejected this \u201cnon-disclosure privilege,\u201d considering it an undue expansion of the Clause. Instead, these courts have held, at least in criminal cases, that the Clause prohibits only the evidentiary use of privileged documents, not disclosure to the government for review as part of an investigation. The disagreement has not been addressed by the Supreme Court.\nIntersection of the Fourth Amendment and the Speech or Debate Clause \nVarious courts have addressed how the Fourth Amendment and the Speech or Debate Clause interact. These cases suggest that whether a search violates the Speech or Debate clause may depend on (1) whether the circuit at issue recognizes a non-disclosure privilege; (2) a fact-specific inquiry as to whether the location of the search is realistically likely to contain legislative materials; and (3) whether a reviewing court views filter team procedures as adequately protective of the privilege.\nIn United States v. Rayburn House Office Building, the D.C. Circuit held that a Federal Bureau of Investigation (FBI) search of Rep. William Jefferson\u2019s office pursuant to a warrant obtained from a federal judge violated the Clause because the manner in which the search was carried out \u201cdenied the Congressman any opportunity to identify and assert the privilege with respect to legislative materials before their compelled disclosure to Executive agents\u201d (emphasis added). The FBI had adopted special procedures for the search (approved by the judge who had issued the warrant), which required that the agents who searched the office have no other role in the investigation. All hard drives in the office were copied, and these copies along with any collected documents were then turned over to a separate filter team, which was required to assess the material as follows: \nMaterials determined to be privileged or not responsive would be returned without dissemination to the prosecution team. Materials determined by the filter team not to be privileged would be turned over to the prosecution team, with copies to the Congressman\u2019s attorney within ten business days of the search. Materials determined by the filter team to be potentially privileged would, absent the Congressman\u2019s consent to Executive use of a potentially privileged document, be submitted to the district court for review, with a log and copy of such documents provided to the Congressman\u2019s attorney within 20 business days of the search.\nThese precautions, the court held, were inadequate under the Clause because they \u201ccalled for review by FBI agents and the several members of the Justice Department filter team before the Congressman would be afforded an opportunity to identify potentially privileged materials.\u201d Any physical act of searching the office, the court reasoned, would inevitably expose the agents to protected legislative materials in violation of the non-disclosure privilege. For that same reason, however, the court held that the copying of hard drives did not violate the Clause, since no executive branch agents had yet viewed the electronic material. The opinion did not articulate a permissible procedure to be applied when the executive branch obtains a warrant to search a Member\u2019s office, but the court did suggest that an accommodation could be reached whereby the office is \u201cseal[ed]\u201d and the Member is \u201cafforded an opportunity to identify potentially privileged legislative materials prior to any review by Executive agents.\u201d Regardless, the D.C. Circuit held that the Member must have the opportunity to assert the protections of the Speech or Debate Clause prior to executive agents conducting any search of the office.\nThe majority opinion in Rayburn did not directly address whether its holding would extend beyond Members\u2019 offices to cover searches of other areas or devices. There was, however, language in the opinion that could suggest that the principles established in Rayburn may appropriately be applied when searches \u201coccur[] in a location where legislative materials [are] inevitably to be found.\u201d Moreover, a circuit judge who concurred in the judgment but not in majority\u2019s reasoning was critical of the breadth of the majority\u2019s non-disclosure privilege, expressing concern that criminal investigations would be hampered by the need to provide a Member with advance notice \u201cof any search of his property, including property outside of his congressional office, such as his home or car, and further that he be allowed to remove any material he deemed to be covered by the legislative privilege prior to a search.\u201d\nIn 2023, the D.C. Circuit considered the application of the Speech or Debate Clause to an FBI search of Representative Scott Perry\u2019s cell phone pursuant to a search warrant. In that case, the FBI obtained a warrant to seize and create a forensic digital image of the phone, and then another warrant to review the contents of that copy. Pursuant to Rayburn, the second warrant provided that Representative Perry \u201cwould have an opportunity to assert any claims of privilege under the Speech or Debate Clause before the government could review the phone\u2019s content.\u201d In considering Representative Perry\u2019s claims of privilege, the court rejected the government\u2019s threshold argument that Rayburn should be limited to Members\u2019 physical offices and consequently that the cell phone was not privileged at all. The court wrote that \u201cRayburn, however, explained that the privilege applies whenever the Executive Branch searches a location where legislative materials [a]re inevitably to be found,\u2019\u201d and that a Member\u2019s cell phone \u201cis realistically such a location.\u201d \nBy contrast, in a criminal case against Representative Christopher Collins, a judge in the United States District Court for the Southern District of New York (which is located within the jurisdiction of the U.S. Court of Appeals for the Second Circuit) found that certain device and account data obtained by the government pursuant to search warrants was not subject to the Speech or Debate privilege because, as a threshold matter, the Clause did not include a non-disclosure privilege. Further, \u201cin stark contrast\u201d to the Rayburn case, the court found that \u201cthe searches did not involve congressional offices or official accounts but were of the personal electronic devices and accounts of certain current and/or former staff members of Defendant Collins.\u201d Finally, the court wrote that \u201ceven if the protections provided by the Speech or Debate Clause includes a non-disclosure privilege, the procedures undertaken by the Government to identify and segregate any protected materials without involving the prosecution team were sufficient under the facts and circumstances presented here.\u201d The government had used a filter team to ensure that \u201cany materials that were arguably legislative materials potentially protected by the Speech or Debate Clause were not reviewed by or made available to the prosecution team.\u201d\nA recently reported search of a Member\u2019s home occurred in the District of Columbia. As such, under the controlling precedent of Rayburn, a court might look to whether the search is of a place \u201cwhere legislative materials [a]re inevitably to be found.\u201d If so, a court might find that the non-disclosure privilege applies and might require the Member to be given the opportunity to assert the protections of the Clause prior to the disclosure of any privileged materials to executive branch agents. Whether a Member\u2019s home\u2014or a personal office within a home\u2014would be subject to the same protections as a Member\u2019s office appears to be an open question. In appealing Rayburn to the Supreme Court (an appeal that was denied), the Solicitor General warned that the Rayburn rule \u201cthreaten[ed] to impede searches of Members\u2019 homes, vehicles, or briefcases.\u201d \u201cWithin the District of Columbia,\u201d the Solicitor General stated, \u201cthe United States will no longer search for documents in an office of a Member located in his home because of concerns that such a search could (under the court of appeals\u2019 decision) taint an investigation.\u201d \nOne reason why the Rayburn court seemed willing to create procedural guardrails for the executive branch was that the \u201chistorical record\u201d was \u201cutterly devoid\u201d of searches of a Member\u2019s office\u2014the search at issue in Rayburn was the \u201cfirst time a sitting Member\u2019s congressional office [had] been searched by the Executive.\u201d Executive searches of a Member\u2019s home, though also rare, have reportedly occurred on several occasions. For example, the FBI had searched Representative Jefferson\u2019s home and found $90,000 in cash in his freezer before executing a search of his office. While Representative Jefferson filed a motion to suppress evidence from the search of his home, the motion does not appear to have raised the Speech or Debate privilege.\nWith respect to the seizure of electronic devices, under the D.C. Circuit\u2019s opinion regarding Representative Perry\u2019s cell phone, any search or seizure of a Representative\u2019s electronic devices in the District of Columbia\u2014at least if the device is used for official purposes\u2014would likely require the Representative to be given an opportunity to shield legislative materials from disclosure. The D.C. Circuit\u2019s non-disclosure rule may be applicable not only to the search of a Member\u2019s phone, but also to law enforcement acquisition of remotely held toll records indicating calls made and received by Member phones. At least one other court has reasoned that toll records can \u201cfall within the protection of the Speech or Debate Clause,\u201d and the House Judiciary Committee majority interim staff report on the Jack Smith investigation concluded that non-disclosure orders that barred notification to Members that their records were being disclosed \u201cviolated controlling D.C. Circuit precedent stating that a Member must be allowed the opportunity to assert the [Speech or Debate] privilege before the Executive scour[s] his records.\u2019\u201d\nConsiderations for Congress\nCongress has options for protecting potentially privileged material from executive branch search and seizure and has on multiple instances legislated with respect to executive search and seizure authority. Among Congress\u2019s options, should it seek to enhance protections for potentially privileged materials, is to impose procedural requirements on the execution of search warrants. Federal Rule of Criminal Procedure 41 governs processes for federal search warrants. Congress could choose to impose requirements in that rule to govern the execution of warrants in special circumstances, like requiring filter teams or other safeguards in cases where the search might expose privileged legislative materials. For example, Congress could codify the procedure endorsed in Rayburn, requiring that a Member of Congress have an opportunity to review materials being searched prior to law enforcement access to that material. \nIn another example, following revelations of law enforcement access to Senate toll records during the Jack Smith special counsel investigation, Congress amended 2 U.S.C. \u00a7 6628 in 2025 to require that the Senate Sergeant at Arms (SAA) or any third-party provider of an \u201celectronic communication service\u201d or \u201cremote computing service\u201d for a Senate office notify the \u201cSenate office,\u201d whenever the SSA or provider receives a subpoena or other \u201clegal process\u201d for covered Senate data, with certain exceptions when the Senator is a target of the criminal investigation. The law does not define \u201clegal process,\u201d but that phrase generally can refer to a variety of processes, including search warrants.\nAlternatively, Congress may opt to leave the matter to the courts, including waiting to see whether the Supreme Court takes up the non-disclosure privilege in light of the current circuit split. ", "https://www.congress.gov/crs_external_products/LSB/PDF/LSB11492/LSB11492.1.pdf", "https://www.congress.gov/crs_external_products/LSB/HTML/LSB11492.html"]], "columns": ["id", "title", "publish_date", "update_date", "status", "content_type", "authors", "topics", "summary", "pdf_url", "html_url"], "primary_keys": ["id"], "primary_key_values": ["LSB11492"], "units": {}, "query_ms": 0.2807779237627983, "source": "Federal Register API & Regulations.gov API", "source_url": "https://www.federalregister.gov/developers/api/v1", "license": "Public Domain (U.S. Government data)", "license_url": "https://www.regulations.gov/faq"}